Hutchinson v Van Den Berg - [2022] SASC 90

Supreme Court of South Australia
(Civil)
HUTCHINSON v VAN DEN BERG
[2022] SASC 90
Judgment of the Honourable Justice Bampton

INSURANCE - MOTOR VEHICLES - INSURANCE OF MOTOR VEHICLES FOR LOSS OR DAMAGE - LIABILITY FOR PERSONAL INJURY

TORTS - NEGLIGENCE - OTHER PARTICULAR CLAIMANTS, DEFENDANTS AND CIRCUMSTANCES - ROAD ACCIDENTS - PEDESTRIAN ACCIDENTS
Negligence – claim for damages for injuries suffered by applicant as a pedestrian when a vehicle driven by his estranged wife collided with him – applicant alleges respondent intentionally collided with him – respondent alleges collision occurred whilst she was in a state of panic – whether respondent intentionally collided with applicant – whether collision occurred while respondent was acting in a state of panic – whether respondent owed a duty of care to applicant or, alternatively, did not breach any of duty of care.
HELD: Applicant has not established that respondent collided with him intentionally – the collision occurred while respondent was acting in a state of fear and panic – respondent did not owe applicant a duty of care in the circumstances.
Civil Liability Act 1936 (SA) ss 31, 32(1)(c), 43, referred to.
Jones v Dunkel (1959) 101 CLR 298; Rejfek v McElroy (1965) 112 CLR 517; Briginshaw v Briginshaw (1938) 60 CLR 336; Miller v Miller (2011) 242 CLR 446; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Cusack v Stayt [2000] NSWCA 244, considered.

HUTCHINSON v VAN DEN BERG
[2022] SASC 90
Civil
BAMPTON J.
Introduction
The criminal charges against Jodi
The claims for damages
The pleadings
Some explanatory remarks
The view
The account of the evidence in my reasons
The photographs taken by police
The A0 plan exhibit A1
The trial
The evidence
The animus
Fairway Street, Para Hills
The appalling state of the property on 14 January 2014 and 18 April 2014
The police statements
Senior Constable Shane Castle
Brevet Sergeant Phillipa McGowan
Troy Sage
Senior Constable Timothy Kirkland

Taylor-Marie van den Berg
The state of the property
18 April 2014
Cross-examination of Taylor
Assessment of Taylor

Troy Hutchinson
The dirty joke incident
Para Vista Shopping Centre Incident
The incident at Jodi’s cousin’s house
The state of the property
18 April 2014
Cross-examination of Troy
Re-examination of Troy
Assessment of Troy

Jamie Sayers-Hutchinson
The state of the property
18 April 2014
Cross-examination of Jamie
Assessment of Jamie

Daniel Zoontjens
Cross-examination of Daniel
Assessment of Daniel

Jodi van den Berg
The dirty joke incident
The Para Vista Shopping Centre incident
The incident at Jodi’s cousin’s place
Why Jodi left the property
The state of the property when Jodi left
Jodi altered the front numberplate of the Mazda
18 April 2014
Cross-examination of Jodi
Re-examination of Jodi
Assessment of Jodi

Accident reconstruction
The three pieces of physical evidence
Troy’s submissions on accident reconstruction
Jodi’s submission on accident reconstruction
Chris Hall
Michael Griffiths
Assessment of expert evidence

Consideration
Jones v Dunkel
The burden of proof
Jodi’s duty of care
The relationship between Troy and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] SASC 90
Decision Date: 25 August 2022

CaseChat Overview and Summary

In Hutchinson v Van Den Berg, the plaintiff, Jodi Hutchinson, brought an action against the defendant, Troy Van Den Berg, seeking damages for personal injury sustained in a motor vehicle accident. The case revolved around the circumstances under which Jodi collided with Troy, who was holding onto the front passenger door of her vehicle at the time. The trial was held in the South Australian District Court, where the Court was tasked with determining whether Jodi intentionally collided with Troy or whether her actions were a reasonable response to the situation she found herself in.

The primary legal issue before the Court was to ascertain whether Jodi's actions were intentional or whether they could be justified as a reasonable response under the circumstances. Specifically, the Court had to decide if Jodi owed a duty of care to Troy after he had engaged in aggressive behaviour towards her, and whether her decision to reverse her vehicle was reasonable given her state of fear and panic at the time. The Court also had to consider whether Troy had discharged the onus of proving that Jodi's actions were intentional.

The Court concluded that Jodi did not owe Troy a duty of care after he had acted aggressively towards her, including kicking the car, punching the driver's side vision mirror, and standing in front of the vehicle. The Court found that Jodi's actions were a reasonable response to the highly charged and dangerous situation she was in. The Court emphasised that Jodi, in a state of fear and panic, acted to remove herself and her passenger from the situation as quickly as possible. The Court rejected Troy's claim that Jodi intentionally collided with him, finding that the evidence did not support such a conclusion on the balance of probabilities. The Court further determined that Troy had not established that a reasonable person in Jodi's position would have taken precautions against the risk of harm.

In light of these findings, the Court dismissed Troy's claim against Jodi. The Court held that Jodi acted reasonably in attempting to leave the scene of the accident and that her error in selecting first gear instead of reverse, given the heightened state of fear and panic, was not unreasonable. The Court did not find any breach of duty on Jodi's part and concluded that any reduction in her duty of care was due to the extraordinary circumstances she faced.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

To assist me in understanding the evidence in the trial, the Court attended a view at Fairway Street and the Para Vista Shopping Centre. The account of the evidence in my reasons I have endeavoured to set out a complete account of the evidence I heard. I have done so to demonstrate I have considered all the evidence, to assist in explaining why I have rejected certain evidence and why I prefer one witness’s account over another’s. As a result, my reasons are lengthy and recourse to the exhibits is needed to understand the evidence regarding positions of the Mazda, Troy and Jamie during the events that unfolded on 18 April 2014.The photographs taken by police Statements of police officers involved in the investigation of the collision, together with the photographs referred to in their statements contained in the tender book compiled by Troy’s solicitors were received as exhibits. I point out the photographs taken by police are not numbered in the tender book by reference to the number ascribed to each photograph by each police officer in their statement. It is therefore necessary to refer to:(1)Exhibit R3 to locate the tender book page number of the photograph that corresponds to the photograph referred to in Senior Constable Castle’s statement;[2] and(2)Exhibit R7 to locate the tender book page number of the photograph that corresponds the to photograph referred to in Brevet Sergeant McGowan’s statement.[3] To further complicate matters, the accident reconstruction experts called to give evidence ascribed their own numbering to the police photographs used in their reports. [2] Exhibit A2.[3] Exhibit A6.The A0 plan exhibit A1 I pause to point out the procedure by which Troy’s counsel adduced evidence of the location of the Mazda, Troy, and Jamie at the various points on Fairway Street. The A0‑sized plan, exhibit A1, was attached to a pinboard with cut-outs of vehicles (“cut-outs”) representing the Mazda.[4] As the witnesses identified the location of the Mazda on Fairway Street, they were asked to attach a cut-out to the plan with Blu-tack. As the witnesses identified their position or the position of others at various points, they marked the plan as requested by Troy’s counsel. [4] Jodi’s counsel agreed the A0 plan was “near enough to scale”. Photographs of the A0 plan, exhibit A1, were taken sequentially as each cut‑out was positioned or marked by a witness. Accordingly, the following exhibits are the products of that procedure: ·exhibit A20 – a copy of exhibit A1 as marked by Taylor together with five photos of A20, accompanied by an aide-memoire;·exhibit A34 – a copy of exhibit A1 as marked by Troy together with five photographs;·exhibit A46 – a copy of exhibit A1 as marked by Jamie together with three photographs, accompanied by an aide-memoire; ·exhibit A47 – a copy of exhibit A1 as marked by Daniel together with one photograph, accompanied by an aide-memoire; and·exhibit A62 – a copy of exhibit A1 as marked by Jodi together with one photograph.To assist in understanding these reasons, I have annexed a copy of the last or only photograph in the series that comprises exhibit A20, exhibit A34, exhibit A46, exhibit A47, and exhibit A62 during my account of the evidence given by the witness to whom the exhibit relates. I have also annexed selected photographs taken by police marked by the witnesses. The trial

Decision

Reasons for decision

BAMPTON J

I accept Jodi did not know where Jamie was situated on the road after Troy broke free of his hold. Troy also gave evidence he did not know where Jamie was at this time. I accept Jodi’s evidence in answer to the various alterative paths to leave the scene suggested by Mr Hall. She said she did not know where Jamie was on the road,[622] she was in fear and panicked when the window and windscreen were smashed after Jamie appeared out of nowhere. She also said she may not have been “skilled enough as a driver”, and it was not a normal way of driving.[622] T800.19-20.Conclusion I am satisfied Troy kicked the front passenger door, walked in front of and stood in the front of the Mazda. Jodi did not owe Troy a duty of care once he had kicked the car, punched the driver’s side vision mirror, behaved aggressively and intimidatingly at the driver’s window and then at the front of the Mazda preventing Jodi from driving forward. Troy has not discharged the onus of establishing it was more probable than not that Jodi drove at him intentionally. I am satisfied Jodi, in a state of fear and panic, manoeuvred the Mazda in order to remove herself and Taylor from the highly charged situation. The evidence relied on by Troy is not clear, cogent and credible such as to persuade me, on a balance of probabilities, that Jodi intentionally collided with him. If I am wrong and Jodi’s of duty of care to Troy was not suspended as I have found, “the circumstances were such as to bring about a significant reduction in its normal content”[623] such that no breach of duty is made out.[623] Cusack v Stayt [2000] NSWCA 244 at [29] Troy has not proved that in the circumstances Jodi was placed, a reasonable person in her position would have taken some precaution against the risk of harm pursuant to s 32(1)(c) of the Civil Liability Act1936 (SA). Viewed prospectively in the light of the circumstances where Troy was at the front of the Mazda and not knowing where Jamie was, Jodi acted reasonably in attempting to leave quickly by reversing over the kerb away from Troy. Viewed prospectively in the light of the circumstances where Jodi’s state of fear and panic was heightened by the unexpected, violent smashing of the windscreen and window, her mistaken selection of first gear instead of reverse causing her to collide with Troy was not an unreasonable error.AnnexuresAnnexure 1 – A copy of the photograph at page 52 of exhibit A2Annexure 2 – A copy of the photograph at page 56 of exhibit A2Annexure 3 – A copy of the photograph at page 67 of exhibit A2Annexure 4 – A copy of the Castle worksheetAnnexure 5 – A copy of exhibit A20 marked by TaylorAnnexure 6 – A copy of exhibit A18 marked by TaylorAnnexure 7 – A copy of exhibit A34 with cut-outs placed and markings made by TroyAnnexure 8 – A copy of exhibit A22 marked by TroyAnnexure 9 – A copy of exhibit R23 marked by TroyAnnexure 10 – A copy of exhibit A46 with cut-outs placed and markings made by JamieAnnexure 11 – A copy of exhibit A36 marked by JamieAnnexure 12 – A copy of exhibit A37 marked by JamieAnnexure 13 – A copy of the photograph at page 73 of exhibit A2Annexure 14 – A copy of exhibit A47 with cut-out placed and markings made by DanielAnnexure 15 – A copy of exhibit R57 marked by JodiAnnexure 16 – A copy of exhibit A62 marked by JodiAnnexure 17 – A copy of exhibit A58 marked by JodiAnnexure 18 – A copy of exhibit A59Annexure 19 – A copy of exhibit A60Annexure 20 – A copy of exhibit A61 marked by JodiAnnexure 21 – A copy of Fig. 1 depicted at page 3 of Mr Hall’s report 11 February 2021Annexure 22 – A copy of Fig. 2 depicted at page 4 of Mr Hall’s report 11 February 2021Annexure 23 – A copy of page 22 of Mr Griffiths’ report 22 April 2021 depicting Fig. 6, Fig. 7, and Fig. 8

Ratio Decidendi

Legal Principle Established

Established by: BAMPTON J

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